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Litigation Update – Bill of Rights Remedies: Declarations of Inconsistency

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Contributed by: Andrew Butler, Chris Curran and Tim Clarke

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Published on: July 29, 2015

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Bill of Rights Remedies: Declarations of Inconsistency

Taylor v Attorney-General is a landmark decision of constitutional significance. It concerned s 80(1)(d) of the Electoral Act 1993, which was amended on 16 December 2010 to prohibit all prisoners incarcerated as a result of a sentence imposed after that date from voting in a General Election. The judgment of Heath J is undoubtedly important for its finding that the prohibition unjustifiably limits the right to vote, which is protected by s 12(a) of the Bill of Rights Act 1990 (BORA). However, it is the response of Heath J to that inconsistency that gives this case particular constitutional significance. In Taylor, for the first time, the High Court granted a formal declaration of inconsistency. In contrast to what has been termed an “indication” of inconsistency – judicial comment found within the reasoning of the court – a declaration of inconsistency is a formal order granted by the Court as a remedy for a breach of BORA.

Remedies for breach of BORA have been developed judicially over the last 25 years, as BORA does not include an express remedial provision. Throughout that time, the availability of a formal declaration of inconsistency has remained controversial. Until Taylor, no court had granted one, and a number of appellate authorities have chiselled away at aspects of any possible jurisdiction to do so. Yet Heath J affirmed resoundingly that the High Court does have such a jurisdiction. His Honour rested this decision on the back of Baigent 0146s Case, finding that there is a “general principle that where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right.” Heath J also found support in s 92J of the Human Rights Act 1993, which expressly authorises the Human Rights Review Tribunal to make a declaration of inconsistency in the context of a breach of the right to be free from discrimination.  

The decision of Heath J to exercise his remedial jurisdiction and grant a declaration of inconsistency is an important development that provides litigants with a tangible remedial option in respect of legislative breaches of rights. In granting the declaration, his Honour noted that “if a declaration were not made in this case, it is difficult to conceive of one in which it would.” His Honour reasoned that this declaration would not constitute an illegitimate intrusion into the parliamentary process, nor undermine the principle of comity between the judiciary and the legislature. He referred to the responsibility of the Court to the public and emphasised that only a formal order would discharge that responsibility; stating that a statutory breach of BORA “should be marked by a formal declaration of the High Court, rather than by an observation buried in its reasons for judgment.” 

Aside from the BORA and constitutional ramifications, this decision does not change the law. Parliament remains supreme, the Electoral Act stands unchanged and all prisoners incarcerated as a result of a sentence imposed after 16 December 2010 cannot vote in a General Election. However, the decision does send a clear message. In doing so, it should contribute to a culture of justification and develop the dialogue between the legislative and judicial branches of government.

Heath J sought to emphasise that “any political consequences” could be “debated in the court of public opinion, or in Parliament”. And so the outstanding question must be, how will Parliament respond? Whatever the response on a substantive level, it is hoped that Parliament publicly demonstrates serious engagement with the judgment. Parliament’s response will certainly be interesting, as it is likely to affect the perceived value of a declaration of inconsistency in the legal community and so shape the future of the remedy. It is to be hoped that this remedy will be seen to be one that effectively vindicates the violation of fundamental rights. Certainly the editorials on this decision published to date calling for change to the Electoral Act emphasise the potency of this form of relief as a method of building political momentum.

 


This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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